IN THE MATTER OF DEAN J. SPENCER CAPE MAY COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0239-08T20239-08T2

A-5344-08T3

IN THE MATTER OF DEAN J. SPENCER,

CAPE MAY COUNTY.

___________________________________

DEAN J. SPENCER,

Plaintiff-Appellant,

v.

DR. DONALD DEARBORN,

DR. JOANNE WALLS,

KATHY SYKES, THE

OCEAN CITY BOARD OF EDUCATION,

DIANE LANZETTA and

EILEEN MAGUIRE,

Defendants-Respondents.

______________________________________

 

Argued March 16, 2010 - Decided

Before Judges Carchman, Lihotz and Ashrafi.

On appeal from a Final Administrative Decision of the Merit System Board, Docket No. 2006-381; and Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-93-07.

James B. Arsenault, Jr., Assistant County Counsel, argued the cause for appellant/ cross-respondent (A-0239-08T2) County of Cape May (John C. Porto, Cape May County Counsel, attorney; James B. Arsenault, Jr., on the brief).

Christian M. Scheuerman argued the cause for respondent/cross-appellant (A-0239-08T2) and appellant (A-5344-08T3) Dean J. Spencer (Jacobs & Barbone, P.A., attorneys; Mr. Scheuerman, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (A-0239-08T2) The New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

Lisa S. Grosskreutz argued the cause for respondents (A-5344-08T3) Dr. Donald Dearborn, Dr. Joanne Walls, Kathy Sykes and the Ocean City Board of Education (Parker McCay, P.A., attorneys; Ms. Grosskreutz, on the brief).

Susanna J. Morris argued the Cause for respondents (A-5344-08T3) Diane Lanzetta and Eileen Maguire (Budd Larner, P.C., attorneys; Ms. Morris, on the brief).

PER CURIAM

These two appeals, argued back-to-back and consolidated for the purposes of our opinion, relate to the dismissal of Dean J. Spencer from his employment with the County of Cape May (the County). In the first matter (A-0239-08T20239-08T2), the County appeals from an August 28, 2008 final administrative action denying reconsideration of a February 28, 2008 decision by the Civil Service Commission (the Commission), which affirmed an ALJ determination downgrading the charges against Spencer, reinstating his County employment, awarding him back pay, and granting counsel fees. Spencer cross-appeals from that portion of the determination mitigating his back pay.

In the second matter (A-5344-08), Spencer appeals from two Law Division orders granting summary judgment in favor of defendants and dismissing his complaint, which alleged negligence, malicious prosecution, interference with contractual benefits, and intentional infliction of emotional distress by defendants Ocean City Board of Education (BOE), BOE employees Dr. Donald Dearborn, Dr. Joanne Walls and Kathy Sykes, and County employees Diane Lanzetta and Eileen Maguire.

We have considered the arguments made in light of the record and applicable legal standards. We affirm.

I.

We relate the facts relevant to Spencer's termination. In 1999, Spencer began working full-time for Ocean City High School (OCHS) as an instructional, one-on-one student aide. On September 1, 2004, he was hired as one of the school's two security officers. Spencer's principal function was to monitor the security control booth of the school's state-of-the-art digital surveillance system. The booth contains monitors for sixty-four security cameras installed throughout the school. Spencer's normal work day was from 7:30 a.m. to 3:30 p.m. When he was hired, OCHS knew Spencer worked for the County and gave him permission to make limited telephone calls during the OCHS work-day.

Spencer was also employed by the County in the titled position of "social worker juvenile rehabilitation," more commonly referred to as a juvenile Intensive Supervision Program (JISP) officer. JISP monitors juvenile offenders on a daily basis as an alternative to detention. Each juvenile receives two telephone calls per day and two face-to-face visits per week from an assigned JISP officer. In addition to responding during designated daily times, each of the five County JISP officers were required to respond to any emergency calls regarding juveniles assigned to their charge twenty-four hours per day, seven days per week. The County knew Spencer was employed at OCHS and believed his interaction with the students was beneficial, as he would know whether JISP clients were attending school. Spencer's County work schedule was nineteen hours each week as follows: 6:00 p.m. to 10:00 p.m. Monday, Tuesday, Wednesday and Friday; and 7:00 p.m. to 10:00 p.m. on Thursday. On February 2, 2005, Spencer was asked to work an extra shift the following day, a Thursday, because the OCHS night shift security officer was unavailable. Spencer agreed he would work from 4 p.m. to 8 p.m., leaving as soon as the varsity basketball game ended.

Later that week, in a conversation with Sykes, the assistant varsity cheerleading coach, Spencer mentioned he saw Margaret DeFelice, the head cheerleading coach, "shimmying" during the team's pre-game practice. Spencer told Sykes he watched the practice while in the surveillance booth via the security cameras. Sykes requested a different security officer review footage of the practice. A duplicate of the security video was given to Sykes covering the February 3, 2005 practice from 4:15 p.m. to 5:48 p.m.

After reviewing the video, notifying DeFelice and the teachers' union representative, Sykes submitted a written statement to OCHS Principal Walls. Walls viewed the tape and concluded there was no reason for Spencer to be watching the cheerleaders "the way that he did." Walls referred the matter to BOE Superintendent Dearborn. On February 10, 2005, Dearborn met with Spencer, two teachers' union representatives, and Walls. At the conclusion of that meeting, Dearborn terminated Spencer's OCHS employment based on his "misuse of public property, infringement of privacy rights and betrayal of the trust of his position."

Over that weekend, the Atlantic City Press published a story regarding Spencer's termination for improper use of the school's security system. Based on the contents of the article, the County suspended Spencer as a JISP officer the following Monday. Formal action was taken on February 15, 2005, charging Spencer with conduct unbecoming a public employee. An amended preliminary notice of disciplinary action specified these charges:

While employed at [OCHS] you misused security equipment during the course of your employment, neglected your required duties, breached the trust of the students and faculty, as well as invading the privacy of said students by utilizing security equipment to surreptitiously record their activities and inappropriately zooming in on body parts without their knowledge, thereby engaging in conduct unbecoming a public employee.

During the course of your employment at [OCHS], you did inappropriately perform duties of a[] [J]ISP Worker and received payment from both entities for the same time-period.

Following departmental hearings conducted to review the charges against Spencer, dismissal was sustained. Spencer was served with a Final Notice of Disciplinary Action on June 14, 2005, and immediately removed from his JISP position. Spencer timely appealed his termination to the Commission, which designated the matter as a contested case and referred it to the Office of Administrative Law (OAL). N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13.

II.

A.

The County's appeal centers on the hearing conducted by an Administrative Law Judge (ALJ). Several OCHS employees testified, during the administrative hearing, including four who had viewed the videotape depicting Spencer's view of the security monitors that recorded the cheerleaders' practice from two separate cafeteria camera angles. Sykes stated she "felt like a peeping-Tom" while watching the video tape. She admitted that the portions of the report she submitted to the principal alleging the camera zoomed-in on students' private parts were not substantiated by the tape footage. Sykes acknowledged the cheerleaders' practice was public and that other students were simultaneously present in the cafeteria, but equated Spencer's camera-viewing to staring.

DeFelice expressed her opinion that the filming of the cheerleaders was inappropriate and violated the students' personal privacy. She admitted her personal dislike for Spencer based on past comments he had made.

Walls agreed it was acceptable to watch the cheerleaders practice in the cafeteria, yet maintained the students would be embarrassed if they knew they were being watched on the surveillance camera. Moreover, she asserted Spencer should have been watching the whole school, not just the cheerleaders. The Assistant Principal Nicholas Salvia agreed Spencer had no reason to move the security camera from its default position to view all the cheerleaders. However, he admitted OCHS had no written protocol regarding the operation of the cameras and confirmed a paintball gun incident had occurred in the cafeteria five days earlier. Salvia stated Spencer was "a good employee."

Lanzetta, the County Director of Human Services charged with oversight of the JISP, also testified. After viewing the tape, she did not initially form an opinion as to whether Spencer's behavior was improper. Then, after reviewing the tape several times, she concluded Spencer must have enjoyed watching the cheerleaders practice, and such conduct, performed in his official capacity, "represent[ed] an inappropriateness" that posed a problem for someone supervising juveniles. She expressed a JISP officer "should not be entertained by looking at an adolescent [for] who[m he has] supervisory control" and must not look at a juvenile "for pleasurable purposes." Lanzetta identified those panned shots devoid of security concerns that she found objectionable, including a zoomed shot showing the lower-body of two cheerleaders, then the floor. She recognized that during his seven years working as a JISP officer, Spencer's record was devoid of disciplinary actions or complaints of inappropriate conduct.

Dale Allen Roach, a JISP officer, testified that while attending a meeting, he heard Lanzetta state she saw no basis for Spencer's firing. Further, Roach insisted Lanzetta agreed with him that Spencer was the "victim of a witch hunt." Retaking the stand, Lanzetta clarified the statements she recalled making at the meeting. She stated Spencer had done nothing "illegal" or possibly nothing "inappropriate," and she denied agreeing with Roach, suggesting her statement was, "I would not exactly call it a witch hunt."

Blake Moore, a retired Middle Township Police Department detective, was the coordinator of the County's JISP and Spencer's immediate supervisor. Moore testified he watched approximately thirty minutes of the tape. He stated that although he could not offer an opinion as to whether the tape showed anything improper because he did not know Spencer's duties at OCHS, the images made him "uncomfortable." When the ALJ asked why, he responded, "unless I was specifically designated and told by my supervisor, that [] my job was to view the cheerleaders, I do not believe I would do it."

Spencer testified on his own behalf. He stated the BOE had no rules or regulations regarding how a security officer was to operate the security system. Generally, he learned on his own. He believed his primary function was simply to monitor the school, and he decided what to monitor using common sense.

Discussing the events of February 3, 2005, Spencer stated it was the second time he worked the night shift at OCHS. He was unaware the cheerleaders were practicing until he went to the cafeteria for a soda at approximately 4:15 p.m. Spencer was concerned because he had not noticed the practice while looking at the monitors and made a mental note to be sure he could view the students.

Spencer knew many of the current squad members because his daughter had been an OCHS cheerleader. That evening, the cheerleaders practice was the single largest group activity, in addition to the basketball games. Spencer made surveillance of the practice and the cheerleaders' protection "a priority," and adjusted a single freestanding camera away from the school's front entrance to the cheerleaders' cafeteria practice area. Spencer justified his decision by stating: 1) concerns were high following a male student being caught targeting female students with a paintball gun in the cafeteria on January 29, 2005; 2) the west wall exit door was located next to the cheerleaders; and 3) any injury suffered by a practicing cheerleader might require an immediate call to the rescue squad.

Spencer described the procedure he followed that evening when monitoring the eight security screens in the booth. He stated one screen always contained a "map of the school" showing all the monitoring spots. One viewer was a split-screen showing one-inch-by-one-inch pictures of sixteen camera views. Another showed four-split-screen camera views displaying images of the basketball games. The remaining cameras were single views aimed on the school's exits, the cafeteria, and the gym. Spencer reset one of the exit monitor to focus on the cheerleaders' practice.

When asked about the portion of the tape where the single camera aimed at the cheerleaders' practice zoomed into what Lanzetta asserted was a cheerleader's "crotch," Spencer maintained he was not maneuvering the camera to ogle the cheerleaders or to view their body parts, and suggested the zoom occurred because the joystick used to move the security camera was loose. Spencer estimated he watched the cheerleading practice for approximately fifteen to twenty minutes because several other things were vying for his attention that evening, such as parents picking up their children, late bus duty, and monitoring the visitor's list, including opposing basketball team fans who obtained clearance to enter the game.

The ALJ reviewed the surveillance video and recorded his findings in a written determination. The ALJ noted the "default" position of the surveillance camera showed a general overview of the school cafeteria and certain cheerleaders periodically were in view. Between 4:33 and 5:48 p.m., the camera was manually panned to the left to fully view the cheerleaders thirteen times. Each time, the camera remained fixed for approximately two to three minutes, then automatically returned to its default position for one to five minutes. Most of the shots panning toward the full group of cheerleaders also showed the west wall exit door. On one occasion, the camera was manually zoomed.

The ALJ found Spencer did not "embellish" his testimony, which was "consistent and logical," including the explanation for the one zoomed image because the joystick in question was, in fact, loose when the ALJ examined it and, for the most part, the footage "depicted the cafeteria floor" rather than focusing on any one cheerleader or anyone's anatomy.

The second charge alleged incompetency, inefficiency or failure to properly perform JISP duties, misuse of public property, and theft of time. The County asserted Spencer engaged in "double dipping;" that is, while working at OCHS he inappropriately performed JISP duties and received payment from both entities at the same time.

It was undisputed that on the evening of February 3, 2005, Spencer worked overtime at OCHS during his scheduled JISP assignment. The ALJ commented, "[o]n its face, it would appear that he 'double dipped' for one hour between 7:00 p.m. and 8:00 p.m." However, "as the testimony revealed, the situation was more complicated than it first appeared."

The double-dipping issue first arose when Spencer enrolled in a college class that met during his scheduled JISP hours, causing other JISP officers to respond to his calls. Lanzetta felt a need to clarify the issue and held a meeting of all JISP officers on October 6, 2004. Lanzetta offered the recorded minutes of that meeting which stated:

[J]ISP employees are warned against "double dipping." You cannot work [J]ISP hours and be at another job at the same time. You cannot work [J]ISP hours while participating in another commitment that accounts for those same hours (i.e. college classes). You can flex your schedule if you are working on another payroll system. We will schedule your [J]ISP hours around those hours, however, you must be uncommitted and available and working [J]ISP for the hours you are paid through [J]ISP. [J]ISP officers can request fewer hours if they are not available for the number of part-time hours they are currently scheduled to work. These hours can be offered to other officers. This flexibility can only be accomplished if coverage needs are all being met.

Also, Lanzetta presented Spencer's February 3 time card, recording that he was paid for JISP work-hours from 7:00 to 10:00 p.m. His personal contact log for that date reflected Spencer's handwritten notation for the same hours and his certification that "the hours listed are true and correct." A third document completed by Spencer during his JISP work was a "Weekly Client Status Form" (WCSF). Lanzetta identified Spencer's WCSF for the week beginning January 28 through February 3, which included telephone calls on February 3 to a juvenile between the hours of 4:45 p.m. and 6:15 p.m., when Spencer was working at OCHS. Lanzetta explained if Spencer bumped into a juvenile client in school, that incidental contact could not be considered when completing the required two telephone calls per day and one face-to-face meeting per week. Additional WCSFs for the period beginning December 10, 2004 until January 27, 2005 were presented, which reflected that Spencer called juveniles at all hours of the day and night, including times outside his assigned duty hours and often during his work-day at OCHS. Lanzetta explained "the problem is [] that the contacts did not occur on [J]ISP time they occurred on [OCHS] time[,] which is not what [Spencer's] supposed to be doing." Lanzetta explained that unavailability was at issue:

And so to flex when he was going to do his work, is -- that's fine with me, as long as you are free and available. You're not drinking alcohol during the time, you're not being paid by somebody else, you're not in a commitment that makes you unavailable to [J]ISP.

. . . .

A couple of the [J]ISP men do have other jobs, and they know and they do not work during those hours. Like I know some guys that work down at the Port Authority for the ferry, and they know that they can't work past 5:00, because they're going to be going on duty at 6:00.

Lanzetta denied knowing Spencer performed JISP duties while working at OCHS and stated Moore, not she, was responsible to review these forms, and he had never disclosed Spencer's conduct. She acknowledged Spencer was only paid for his assigned hours of 7 to 10 p.m., and received an annual $1000 stipend for "stand-by pay," representing responses to calls that might occur anytime of day or night. If Spencer needed to modify his assigned time, he was to seek permission.

Moore agreed he had "signed-off" on Spencer's WCSFs, but stated all officers perform some JISP work outside their assigned shifts and that the job could not be done within the regular shift hours, which were "for recordkeeping purposes only." However, he would have expected Spencer to tell him if the OCHS job hours overlapped with his JISP schedule and affirmed he would not have approved Spencer's time sheets had he known he was actually working at OCHS. Moore stated,

it would have been improper for my people, the [J]ISP people to be working a second job at the same time that they were assigned to work the Cape May County [J]ISP job.

. . . .

It was clear that they couldn't work another job at the same time that they were submitting their payrolls as to when they worked for Cape May County [J]ISP.

Moore confirmed he told Spencer it was "not okay" to get paid by two employers "at the same time for . . . working the same time." Further, Moore told him even if he saw a client at school, he "still needed contacts within the frame of time that he was authorized by the [C]ounty to be working according to the time sheets."

On this issue, Roach agreed a JISP officer's assigned shift times "did not represent the actual times" duties were performed. Roach stated he performed his duties throughout the day whenever the juveniles were available.

Finally, Spencer explained he perceived his JISP schedule was flexible and "in keeping with past practices of the office," performed his three hour shift on February 3 from 8:00 p.m. to 11:00 p.m. He neither informed Moore nor Lanzetta of this change. Spencer stated he did not work during his shift hours despite the fact that his schedule technically required him to do so as, depending on the volume of work, he sometimes would work earlier or later. He did not punch a time clock and accurately recorded his time on the WCSF.

After considering all the evidence, the ALJ concluded Spencer did not engage in conduct unbecoming to a public employee when he observed the cheerleaders while using the monitors in the security office. The ALJ found Spencer's job required surveillance of the activities in the school, including the public cheerleading practice. Further, Spencer offered "clear security-related reasons" for manipulating the security camera as shown on the video. Spencer's conduct did not violate the cheerleaders' privacy and "keep[ing] the cheerleader practice under surveillance . . . was his job."

As to the charges related to "double dipping", the ALJ found JISP officers used the fixed hours for payroll purposes and in practice worked a flex schedule. Their job was defined by the number of contacts required each week. Spencer frequently made contacts with juveniles while performing security duties at OCHS, which was authorized by his OCHS supervisor. Specifically, on February 3, 2005, Spencer performed telephone contacts outside his assigned shift. Moore had approved Spencer's time card despite Spencer noting on his time card that he contacted juveniles outside of his assigned duty hours. The ALJ determined "the officially mandated hours of work for an [J]ISP officer were modified in fact by an accepted practice." Therefore, Spencer did not engage in "double dipping" despite the overlapping work hours for OCHS and the County on February 3, 2005.

The ALJ reversed the County's action of removing Spencer from employment, reinstating his employment, awarded mitigated back pay and counsel fees, and ordered "the charge [of conduct unbecoming a public employee] must be dismissed." Also, the ALJ dismissed the charges of theft of time and incompetency. However, he determined Spencer failed to take steps to modify his JISP shift work records to reflect when he actually worked on February 3, 2005. "By failing to either inform his supervisor about the necessity to work an extra shift at OCHS, or to otherwise correct his time card . . . he created the appearance of impropriety," which constituted "inefficiency." In imposing a penalty, the ALJ considered Spencer's "virtually unblemished record in over thirty years of service in various arms of law enforcement and security." In keeping with the progressive discipline policy of the State and noting "the offense here was a minor error in judgment," he concluded the lowest level of discipline was warranted and downgraded the initial penalty to a written reprimand.

Exceptions to the January 2, 2008 ALJ determination were filed by the County and cross-exceptions were filed by Spencer. The County challenged as erroneous certain factual findings, argued the ALJ incorrectly excluded evidence showing Spencer's prior conduct, and erred in rejecting the County's assertion that the issue of Spencer's inappropriate conduct on February 3, 2005 had been determined in another judicial proceeding. Spencer challenged the ALJ's conclusion that his back-pay award be mitigated.

The Commission concluded the ALJ's factual findings were grounded in the record, found no abuse of discretion was demonstrated by his evidential determinations, and determined there was no issue preclusion as Spencer's conduct was not determined in the prior proceeding. Further, the Commission found Spencer's removal was not justified. Based on the appearance of impropriety resulting from Spencer's failure to correctly complete his time records, it upheld modification of the penalty from removal to an official written reprimand. Accordingly, it ordered reinstatement, mitigated back pay, benefits and seniority, N.J.A.C. 4A:2-2.10(d)(3), and an award of counsel fees.

The County petitioned for reconsideration, asserting the Commission had not reviewed the videotape, which would refute certain factual findings made by the ALJ. It also sought a stay of Spencer's reinstatement pending appeal. N.J.A.C. 4A:2-1.2(f). The Commission reviewed the security video but declined to disturb its prior decision. The County's petition for stay, although deemed premature as the Commission had not finalized the amount of back pay and counsel fees, and because the County had not yet filed an appeal was, nevertheless, evaluated pursuant to N.J.A.C. 4A:2-1.1(a) and (c), then denied. Spencer contested the application of mitigation in any back pay award and sought resolution of the amount he was due. In its decision, the Commission addressed this request, ordering an award of $20,806.92 in back pay and $15,601.50 in counsel fees.

The County appealed and Spencer cross-appealed. The County's motion for stay and Spencer's motion to dismiss were denied.

B.

We recite the well-recognized principles of limited judicial review of administrative agency action. See In re Herrmann, 192 N.J. 19, 27-29 (2007); In re Carter, 191 N.J. 474, 482-83 (2007). In our review of this matter, we note a strong presumption of reasonableness attaches to the decision of an administrative agency. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Herrmann, supra, 192 N.J. at 27-28. Our review centers on:

"(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."

[Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 52 (1995)).]

When an error in factfinding is asserted, our review is limited to determining whether sufficient credible evidence exists in the record from which the findings made could reasonably have been drawn. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Similarly, with regard to the credibility of witnesses' testimony, the administrative agency's reasoned determination is conclusive on appeal. See In re Taylor, 158 N.J. 644, 659-60 (1999) (stating credibility findings are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988).

Generally, an agency's decision is afforded substantial deference based on the agency's expertise and superior knowledge of the particular field it administers. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). The Commission's expertise should be respected. Gloucester County Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 395 (1983). Deference controls even if the court would have reached a different result. See Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001); Taylor, supra, 158 N.J. at 657.

This "deferential standard applies to the review of disciplinary sanctions as well." Herrmann, supra, 192 N.J. at 28 (citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431-32 (1975)). On review, an imposed sanction should be affirmed except "when necessary to bring the agency's action into conformity with its delegated authority." In re Polk, 90 N.J. 550, 578, (1982). "[T]he test . . . is 'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Herrmann, supra, 192 N.J. at 28-29 (citing Polk, supra, 90 N.J. at 578).

There is no precise definition for "conduct unbecoming a public employee"; thus, the question can only be answered following a review of the facts of each individual case. Pfitzinger v. Bd. of Trs., PERS, 62 N.J. Super. 589, 599 (Law Div. 1960). The concept "is an elastic one," and includes conduct, "which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services." Karins v. City of Atl. City, 152 N.J. 532, 554 (1998) (quotations and citations omitted). Moreover,

a finding of misconduct need not "be predicated upon the violation of any particular rule or regulation, but may be based merely upon the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct."

[Id. at 555 (quoting Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992)).]

Well aware of these criteria, the Commission properly evaluated the propriety of Spencer's conduct in its de novo review. It concluded no evidence supported the County's suggestion that Spencer's purpose in monitoring the cheerleaders' practice was to leer or ogle at the students or obtain personal gratification. Moreover, as aptly noted by Spencer during the hearing, nothing showed he was solely monitoring the cheerleaders' practice or excluded his other responsibilities. Rather, the substantial credible evidence, including Spencer's description of his monitoring routine on the night in question, supported a finding he performed his charged security function. For the reasons stated, he adjusted one camera to include the cheerleaders' practice and proceeded to monitor the footage of all the other security cameras. The equivocal reactions of Lanzetta and Moore, after viewing the videotape, and the inferences drawn from the BOE's termination of Spencer proved insufficient to overcome the entirety of the countervailing evidence, which included the Commission's review of the surveillance video.

The County also argues the Commission erred in affirming that the cheerleaders had no expectation of privacy. The argument is premised on a claim that Spencer watched the cheerleaders through the surveillance camera for over an hour, something the coaches would not have permitted had he been standing in the cafeteria. However, the factfinder was free to accept as credible Spencer's testimony that he was viewing the feeds from all sixty-four cameras and, due to the additional demands that evening, perhaps actually monitored the cheerleading practice for a total of fifteen minutes.

We also reject the County's argument that Spencer's prior "bad acts" while employed by OCHS were wrongfully excluded. First, no prior misconduct was presented regarding Spencer's performance as a JISP officer. Second, as to any matter at OCHS, no charges or even warnings were filed against Spencer for any claimed inappropriate acts.

Likewise, this record does not support the County's position that misconduct "rendered [Spencer] devoid of the trust that [the County] must place in its field workers[.]" We have no basis to alter the Commission's findings and conclusion on this charge.

Turning to the double dipping charge, the Commission's limited findings that Spencer merely entered inaccurate information on his payment records appear to subsume the ALJ's findings on this matter. To the extent its conclusion is based on Spencer's suggestion that he believed his JISP hours were flexible and his assigned shift was merely for record keeping purposes, it is unsupported. Spencer was repeatedly told JISP workers were not permitted to work other employment during their shift without prior permission and a change in shift hours. Lanzetta held the October 16, 2004 JISP officers meeting to discuss double dipping because Spencer enrolled in a college course that met the same time as his assigned shift. The minutes of that meeting make abundantly clear JISP officers were not to work or engage in other activities during their assigned hours, which would render them unavailable to call or meet with the juveniles in their care. Moore also told Spencer he could not work another job during his shift.

The record also shows Spencer first learned of the request to work a double shift on February 2. He knew that working at OCHS from 8 a.m. to 8 p.m. would impinge on his JISP assignment; yet he never attempted to notify either Lanzetta or Moore to obtain permission to modify his shift. Although Moore and Lanzetta knew Spencer had another job and sometimes made contacts while at OCHS, neither was aware he was doubling his work assignment. Finally, Moore stated, had he known Spencer did this, he would not have approved his request for payment.

We cannot ignore these facts that belie Spencer's broad assertion that he acted within permitted practices for JISP officers fulfilling their work commitments. Any public employee whose salary is sustained by taxpayers' funds must scrupulously abide by rules and regulations to assure the public entity's accountability for those funds.

The record also includes Spencer's unchallenged statement that, on February 3, 2005, he fulfilled his JISP responsibilities by starting his shift one hour later than usual and did not wrongfully collect payment from two public positions for the same hour. Absent contradictory evidence, the Commission is free to rely on Spencer's statement, and we defer to that finding. Campbell, supra, 169 N.J. at 587-88; Taylor, supra, 158 N.J. at 657; Cavalieri v. Pub. Employees Ret. System, 368 N.J. Super. 527, 537 (App. Div. 2004).

Measured by the standards governing our review, we discern no basis to disturb the Commission's factual findings supporting dismissal of the most severe charge against Spencer, that of conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6). That finding was based on substantial credible evidence in the OAL record, as well as the Commission's independent review of the surveillance video. Therefore, its conclusion based upon that evidence is neither arbitrary nor capricious.

Also, although we agree with the County that Spencer failed to follow required procedure and was working at two public positions for the same hour, we are constrained to accept the Commission's conclusion rejecting the charge of theft of time. The Commission's limited finding that Spencer adjusted his JISP schedule to make up the time by working 8 p.m. to 11 p.m., rather than his assigned shift of 7 p.m. to 10 p.m., is supported by the record.

The County also advances legal error resulted by the denial of its request for summary judgment based on "equitable estoppel." We provide additional facts underlying this assertion.

Following Spencer's termination from OCHS, he filed for arbitration with the BOE. The arbitrator determined the matter was arbitrable and, after review, there was no inappropriate conduct or cause for concern in Spencer's video surveillance. The County filed an appeal of the arbitrator's award, suggesting a mistake of law. On review by the Superior Court, the parties filed cross-motions for summary judgment. Following oral argument, and after reviewing the surveillance tape, the court stated it was "satisfied with the Board's action in terminating [Spencer's] employment and [] declining to renew it was legally appropriate with or without cause," based upon the terms of Spencer's contract. Accordingly, the judge vacated the arbitrator's award.

Here, the County moved for dismissal arguing the prior judicial determination may be used "to collaterally or otherwise estop a contrary conclusion with regard to [Spencer's] employment." We determine the issue is without merit, R. 2:11-3(e)(1)(E), adding only these brief comments.

To foreclose relitigation of an issue based on collateral estoppel, a party asserting the bar must show the issue to be precluded was identical to the issue decided in the prior proceeding; was actually litigated in the prior proceeding; and was included in a final judgment entered on the merits. Brookshire Equities, LLC v. Montaquiza, 346 N.J. Super. 310, 319-20 (App. Div), certif. denied, 172 N.J. 179 (2002). To impose preclusion of an issue the parties must have been afforded the opportunity to fairly litigate the matter and obtain a determination. First Union Nat. Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007). The arbitration award was vacated based upon a mistake of law -- that is, Spencer's contract allowed termination with or without cause -- not upon a finding of impropriety in Spencer's conduct. Thus, the issue cannot be said to have been litigated in the prior proceeding.

The final issue for consideration in this matter is Spencer's cross-appeal claiming error in applying N.J.A.C. 4A:2-2.10(d)(7) to mitigate his back-pay award by the amount of earnings he received from other employment during the time of the adverse action. Spencer challenges the Commission's determination that his "post-termination employment served to replace the position he held with the County," maintaining his "subsequent employment replaced his earnings from OCHS, not the County[.]" We reject this argument.

When back pay is awarded, the former provision set forth in N.J.A.C. 4A:2-2.10(d)(3), which governs this matter provided in pertinent part:

3. Where a removal or suspension has been reversed or modified, . . . the award of back pay shall be reduced by the amount of money that was actually earned during the period of separation, including any unemployment insurance benefits received, subject to any applicable limitations[.]

The Commission rejected Spencer's contention, reasoning he had been terminated from OCHS before the adverse action by the County; thus, the subsequently obtained employment replaced his last-held employment as a JISP officer. Spencer offers nothing to challenge this finding.

Where the Legislature entrusts an agency with the responsibility of determining the means of achieving an articulated statutory policy, a presumption of reasonableness is afforded to the agency in the interpretation of its regulations. Barone v. Dep't of Human Servs., Div. of Med. Assistance, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987); Academy Bus Tours, Inc. v. N.J. Transit Corp., 263 N.J. Super. 353, 364 (App. Div.), certif. denied, 143 N.J. 485 (1993). The burden rests on the challenger to show the interpretation is arbitrary or contrary to the legislative purpose. Smith v. Ricci, 89 N.J. 514, 525, appeal dismissed sub non, Smith v. Brandt, 459 U.S. 962, 103 S. Ct. 286, 74 L. Ed. 2d 272 (1982). Spencer's arguments are not persuasive. We will not interfere with the Commission's reasonable interpretation and application of its regulation.

III.

We now review the consolidated matter, Spencer's appeal of the summary judgment dismissal of his February 13, 2007 complaint against the BOE and various BOE and County employees alleging negligent termination (count one), malicious prosecution and abuse of process (count two), "unlawful interference with contractual relations" (count three) and intentional infliction of emotional distress (count four). On December 19, 2008, the Law Division granted summary judgment to County defendants Lanzetta and Maguire, the County Director of Human Relations. Thereafter, on June 4, 2009, the court granted summary judgment to the BOE and its employee-defendants Dearborn, Walls, and Sykes. Spencer appeals from these two orders, arguing the court erred in dismissing counts one, two and three.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts; we then decide "whether the motion judge's application of the law was correct." Id. at 230-31. We owe no deference to the motion judge's conclusions on issues of law. Id. at 231 (citing Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

On appeal, Spencer maintains genuine issues of material fact were presented regarding his claims falling under the torts of malicious prosecution and tortious interference with economic opportunity, making the entry of summary judgment improvident. Additionally, Spencer maintains the court erred in granting immunity to the public employee defendants.

Following our review of the arguments presented on appeal, in light of the record and applicable law, we conclude Spencer's complaint is legally unsustainable, and his arguments lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We provide these limited comments.

First, to sustain a claim for malicious prosecution a plaintiff must prove four elements: "(1) a criminal action was instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff." LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) (citing Lind v. Schmid, 67 N.J. 255, 262 (1975)). "Malicious use of process requires the plaintiff to prove the civil counterpart to each of those elements, but adds a fifth requirement, namely, that the plaintiff has suffered a special grievance caused by the institution of the underlying civil claim." Ibid. (citing Mayflower Indus. v. Thor Corp., 15 N.J. Super. 139, 152 (Ch. Div. 1951), aff'd, 9 N.J. 605 (1952)). A special grievance is designed to take the place of the injurious effects flowing from a wrongfully instituted criminal charge. Ibid. "[T]he minimal impact of the commencement of civil litigation is insufficient on its own to demonstrate an injury" necessary to support the civil remedy of malicious use of process. Id. at 90-91.

Spencer's malicious prosecution claims are bereft of the necessary elements of malice. Additionally, granting him the benefit of all inferences, his claims of liberty deprivation, because he no longer earns the level of income received while at OCHS, do not prove the special grievance element of an abuse of process claim. Moreover, Spencer's OCHS contract was lawfully terminated pursuant to its provisions, which is not actionable.

The Court's caution stated in LoBiondo, supra, is apt:

Our longstanding reluctance to permit parties to utilize these causes of action springs from our recognition that they carry with them the significant potential for abuse. Left unchecked, they create the possibility that a party will be forced to defend against one of these claims based on little more than having filed, and lost, in a court proceeding as to which the original defendant harbors resentment and anger.

[199 N.J. at 91.]

Second, Spencer's claims of negligence against the BOE and County employees were properly barred by N.J.S.A. 59:3-8 and N.J.S.A. 59:3-2(a). N.J.S.A. 59:3-8 provides that "[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment." Here, Spencer has failed to prove the BOE or County employees acted beyond the scope of their employment or committed fraud or intentional torts. Immunity can be voided only upon proof of actual fraud, actual malice, or willful misconduct, Hayes v. County of Mercer, 217 N.J. Super. 614, 622 (App. Div.), certif. denied, 108 N.J. 643 (1987), none of which has been shown. The motion judge's application of Tort Claim Act immunity and dismissal of Spencer's claims is sustained.

Finally, the claim of tortious interference with economic opportunity, an intentional tort that may not be barred by public immunity, also fails because Spencer has not shown malice. It too was properly dismissed. "A complaint based on tortious interference must allege facts that show some protectable right -- a prospective economic or contractual relationship" and "must allege facts claiming that the interference was done intentionally and with 'malice.'" Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 751 (1989) (citations omitted). Spencer's evidence cannot withstand this level of scrutiny, making summary judgment appropriate.

IV.

In summary, we affirm the decision of the Commission reversing Spencer's termination, reinstating his County employment, dismissing the charge of engaging in conduct unbecoming a public employee, awarding him back pay, and granting counsel fees. We also affirm the Commission's decision to downgrade the charge of theft of time to one of inefficiency and to sanction Spencer with a public reprimand, as well as its calculation of the amount of back pay due, mitigated for subsequent employment.

We also affirm the summary judgment dismissal, with prejudice, of Spencer's Law Division complaint against the BOE and the individual County and BOE defendants.

 
Affirmed.

The ALJ determination was appealed to the Merit Systems Board (MSB) in January 2008. Later that year, on June 30, 2008, P.L. 2008 c. 29 was adopted changing the MSB to the Commission. In this opinion, we omit reference to the MSB in favor of consistency and refer solely to the Commission.

Spencer's testimony suggests he began working part-time at OCHS in 1997.

Additional witnesses corroborated facts related by those discussed in the opinion.

It is understood that two tapes were presented to the ALJ. For simplicity in our opinion, we reference the singular "tape."

During oral argument, both parties agreed the ALJ's description of the surveillance tape was a substantially accurate depiction of its contents. The tape was not included in the record.

N.J.A.C. 4A:2-2.10(d)(3) was repealed effective August 4, 2008 and recodified by N.J.A.C. 4A:2-2.10(d)(7). See N.J.R. 4520(a).

As noted above, this regulation was repealed and replaced by:

7. If an employee also held other employment at the time of the adverse action, the back pay award shall not be reduced by earnings from such other employment. However, if the employee increased his or her work hours at the other employment during the back pay period, the back pay award shall be reduced by the earnings from such additional hours.

(continued)

(continued)

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A-0239-08T2

May 7, 2010